Nicholas Tang Holdings Pty Limited v Waverley Council

[2020] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nicholas Tang Holdings Pty Limited v Waverley Council [2020] NSWLEC 1072
Hearing dates:	Conciliation conference on 4 December 2019
Date of orders:	06 March 2020
Decision date:	06 March 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders that: (1)   The Applicant is granted leave to rely on the amended Class 1 Application, a copy of which is annexed and marked “A”. (2)   The Applicant is granted leave to rely on the amended plans, copies of which are annexed and marked “B for the purposes of the development application. (3) The Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $15,000 within 30 days. (4)   The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 for contravention of the maximum height development standard imposed by clause 4.3 of the Waverley Local Environmental Plan 2012 is well founded. (5)   The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 for contravention of the maximum FSR development standard imposed by clause 4.4 of the Waverley Local Environmental Plan 2012 is well founded. (6)   The Appeal is upheld. (7)   Development Applicant No. 40/2019 for the demolition of two boarding houses and one residential flat building and the erection of a new four storey residential flat building and basement parking at 278, 280 and 282 Birrell Street, Bondi is approved subject to the conditions annexed and marked “C”.
Catchwords:	DEVELOPMENT APPLICATION — residential flat building — conciliation conference — agreement between the parties — orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012
Texts Cited:	Apartment Design Guide Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Nicholas Tang Holdings Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Counsel: C McEwen SC (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/100787
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Nicholas Tang Holdings Pty Ltd (ACN 126 806 237) (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Waverley Council (the Council) of Development Application No. 40/2019 (the application).

2. The application as lodged sought consent under the EPA Act for the demolition of two boarding houses and one residential flat building (RFB) and the erection of a new four storey RFB and basement parking at 278, 280 and 282 Birrell Street, Bondi (the site).

3. The site comprises 3 properties known as Lot A in DP 314083 and Lot 2 in DP315144, Lot B in DP 314083, and Lot E Section E in DP 3426. These lots are proposed to be amalgamated to create a site area of 1386.1m².

4. The site is located on the northern side of Birrell Street and also has a secondary frontage to Ewell Lane at the rear.

5. The Council advertised the application and 20 submissions were received objecting to the proposal. Issues raised included: the overdevelopment of the site in terms of height and floor space ratio (FSR); overshadowing; visual, acoustic, view, traffic, parking, privacy, heritage, and construction impacts; impact on the streetscape and local character; tree loss; waste collection; and loss of affordable housing.

6. On 1 April 2019, the applicant commenced the subject appeal.

7. In the Statement of Facts and Contentions (SFC) filed with the Court by the Council, contentions raised by the Council regarding the application included: the height of the building, bulk and streetscape, design quality, building separation, density/overdevelopment, amenity impacts on future residents and adjoining properties (including view loss, and visual and acoustic privacy), landscaping, excavation, waste management and the public interest.

8. The development exceeded the maximum height and floor space ratio (FSR) permissible under the Waverley Local Environmental Plan 2012 (the LEP). It also did not comply with a number of the provisions of the Waverley Development Control Plan 2012 (the DCP) and State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), including the associated Apartment Design Guide (ADG).

9. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. Prior to the conciliation, the proposed development was amended in an endeavour to address the contentions raised.

10. As a result of the amendments, an agreement was reached between the parties and filed with the Court under s 34(3) of the LEC Act.

11. As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court can make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

13. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties.

14. However, the Council filed with the agreement a “Statement of Reasons” for entering in the agreement, which I will briefly summarise. In that regard, the agreement was on the basis of a reduction in height of the building, the provision of increased setbacks, reduction in FSR non-compliance, the provision of a new communal area with access to Ewell Lane, and the protection and retention of significant trees on adjoining properties.

15. The Council had also raised concerns under State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP) with the loss of affordable rental housing. The particular concern was the required contribution for this loss associated with all 3 of the existing properties. In this regard, an agreed condition of consent requires the Applicant to submit a Voluntary Planning Agreement requiring payment of an affordable housing contribution of $742,220.

16. The Council is also of the view that the amended plans and documentation have adequately addressed the contentions outlined in the SFC and the relevant issues raised by objectors, including potential view impacts.

17. I am satisfied that all of the pre-conditions to the granting of consent have been met. In this regard, the parties filed with the agreement an “Agreed Statement of Jurisdiction” which deals with the relevant pre-conditions, which I will briefly summarise.

18. Firstly, the site is zoned R3 Medium Density Residential under the LEP and the use is permissible with consent in that zone. The objectives of the R3 zone have also been considered in the amended application.

19. Secondly, the development (even as amended) contravenes the maximum permissible height under the LEP of 12.5m and FSR of 0.91:1. The development is to a maximum height of 12.93m (a 3.4% variation to the standard) and has an FSR of 1.04:1 (a 16.1% variation to the standard).

20. The applicant submitted cl 4.6 written requests seeking to justify these height and FSR contraventions. These requests were supported by the Council and submitted with the agreement.

21. I have reviewed and considered the cl 4.6 written requests accompanying the agreement and am satisfied, for the reasons that follow, that the requests demonstrate that compliance with the maximum height and FSR standards is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contraventions sought. Further, that the development will be in the public interest because it is consistent with the objectives of the standards and for development in the R3 zone.

22. The concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5).

23. The reasons contained in the cl 4.6 written request in support of the height variation sought, on which my finding of satisfaction with the proposed variation is based, can be summarised as follows:

1. The non-compliance is numerically minor being a maximum breach of 0.43m or 3.4%.

2. The area of maximum breach is centrally located, limited to the lift overrun, and situated away from the sensitive eastern and western (side) boundaries. The lift is required to provide equitable access for occupants, and offers additional amenity.

3. The breach at the rear is a result of the difference in existing ground levels of the lots to be amalgamated.

4. The development will provide a transition in building height in Birrell Street reflecting the topography which slopes from west to east. It will be below the height of the adjoining building at 276 Birrell Street and above the height of the other adjoining building at 284 Birrell Street. It will therefore appear compliant with the intended height and form of development on the site.

5. The height breach will not be visible from Birrell Street with that elevation up to 3.3m below the 12.5m height standard.

6. There is an absence of impacts from the non-compliance on the amenity of neighbours with no additional overshadowing to adjoining properties, no additional privacy impacts, and no additional view loss.

7. The amalgamation of the 3 properties enables a reduced building footprint maximising building separation from adjoining properties and enhancing natural ventilation and solar access within the proposed units. This is considered a superior amenity outcome when compared to a compliant scheme over the individual lots.

8. In terms of the applicable zone objectives, the development will assist with meeting the housing needs of the community in a variety of dwelling types, layouts and orientations within a medium density residential environment. Further, 10% of the dwellings are adaptable which will assist with supplying dwellings that are suitable for a variety of residents including the elderly and disabled. The design is also contemporary, with suitable transitions in height, modulation and articulation and will achieve a high level of compliance with the ADG.

24. The reasons contained in the cl 4.6 written request in support of the FSR variation sought, on which my finding of satisfaction with the proposed variation is based, can be summarised as follows:

1. The scale and form reflects the desired future character for development in the locality having regard to the planning controls.

2. The amalgamation of 3 properties enables a single articulated built form providing the opportunity to ‘fill’ the area (that would otherwise exist between individual buildings) with additional floor area, without having a significant impact on the amenity of adjoining properties or the appearance of the building from the public domain. This also allows for greater side setbacks, modulation and amenity than what is typically seen on surrounding RFBs (on smaller individual lots).

3. The design responds to the specific circumstances of a sloping site with a crossfall of 6.8m. The building will sit comfortably between the 2 adjoining RFBs and form a transition in height and scale reflecting the topography which slopes to the east.

4. The additional dwellings, including 3 adaptable dwellings, are within a highly sought after location on a large consolidated site.

5. The non-compliance has no adverse impact on the amenity of adjoining properties and is compatible with the character and built form of the locality. In this regard, it creates no significant additional overshadowing, privacy impacts or view loss relative to a compliant building envelope. It will not result in a development that is noticeably larger than anticipated by the controls or which is inconsistent with the character of the locality.

6. The internal amenity of the units is exceptional with compliant solar access and cross ventilation to 100% of units.

7. The floor space is largely contained within the permissible building envelope and the requirements of the ADG are met as are the front and rear setbacks including with a recessed upper level.

8. To the casual observer, the building would appear generally FSR compliant and compatible with the medium density locality.

9. The proposal replaces 3 aged buildings nearing the end of their economic life with a new development in a location close to services and transport.

10. The development will encourage activation at street level in both Birrell Street and Ewell Lane.

11. In summary, the objectives of the standard are met in providing an appropriate correlation between height and density, ensuring the building is compatible with the bulk, scale, streetscape and desired future character of the locality, and the scale is limited to preserve the amenity of neighbouring properties.

12. The zone objectives are met for the same reasons as summarised for the height contravention.

25. In addition to compliance with cl 4.6, the other applicable pre-conditions to consent contained in the LEP have been satisfied. This includes considering the impacts of the proposed earthworks as is required by cl 6.2.

26. The development was amended to address concerns raised in terms of compliance with the design requirements of SEPP 65, the ADG and the DCP. This includes compliance with cl 30 of SEPP 65 which are standards that cannot be used to refuse consent and which are met. A Design Verification Statement was also submitted.

27. I am also satisfied that the requirements of the ARH SEPP have been considered, and that the required contribution for the loss of affordable rental housing is addressed in the agreed conditions of consent.

28. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

29. Accordingly, the Court orders that:

1. The Applicant is granted leave to rely on the amended Class 1 Application, a copy of which is annexed and marked “A”.

2. The Applicant is granted leave to rely on the amended plans, copies of which are annexed and marked “B for the purposes of the development application.

3. The Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $15,000 within 30 days.

4. The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 for contravention of the maximum height development standard imposed by clause 4.3 of the Waverley Local Environmental Plan 2012 is well founded.

5. The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 for contravention of the maximum FSR development standard imposed by clause 4.4 of the Waverley Local Environmental Plan 2012 is well founded.

6. The Appeal is upheld.

7. Development Applicant No. 40/2019 for the demolition of two boarding houses and one residential flat building and the erection of a new four storey residential flat building and basement parking at 278, 280 and 282 Birrell Street, Bondi is approved subject to the conditions annexed and marked “C”.

…………………………

Jenny Smithson

Commissioner of the Court

Annexure A (87.0 KB, pdf)

Annexure B (13.1 MB, pdf)

Annexure C (114 KB, pdf)

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Decision last updated: 09 March 2020